I.
ALIMONY INTRODUCTION
The Courts in Tennessee have the authority to award alimony pursuant to T.C.A. § 36-5-
121. [(codified on July 1, 2005) formerly T.C.A. § 36-5-101].
(a) In any action for divorce, legal separation or separate maintenance, the court
may award alimony to be paid by one spouse to or for the benefit of the other, or
out of either spouse’s property, according to the nature of the case and the
circumstances of the parties. The Court may fix some definite amount or amounts
to be paid in monthly, semimonthly, or weekly installments, or otherwise, as the
circumstances may warrant. Such award, if not paid, may be enforced by any
appropriate process of the court having jurisdiction including levy of execution.
Further,, the order or decree shall remain in the court’s jurisdiction and control
and, upon application of either party, the court may award an increase or decrease
or other modification of the award based upon a showing of a substantial and
material change of circumstances; provided, that the award is subject to
modification by the court based on the type of alimony awarded, the terms of the
court’s decree or the terms of the parties’ agreement. T.C.A. § 36-5-121 (2008).
A.
STATUTORY HISTORY OF ALIMONY
“Alimony was originally allowed in recognition of the husband’s common law liability to
support his wife.” Rush v. Rush, 33 Tenn. App. 496, 232 S.W.2d 333, 336 (1949).
In 1949, the legislature enacted two types of alimony: alimony in futuro and alimony in
solido.
T.C.A. § 36-820 (alimony in futuro) provided that upon the dissolution of the marriage or
a court decreed separation, the court may make an order and decree for the suitable support and
maintenance of the complainant by the respondent, or out of his or her property… according to
the nature of the case and the circumstances of the parties, the order or decree to remain in the
court’s control; and, on application of either party, the court may decree an increase or decrease
of such allowance on cause being shown.
T.C.A. § 36-821 (alimony in solido) provided that upon dissolution of the marriage or a
court decreed separation, the court may award as alimony “such part of the other spouse’s real
and personal estate as it may think proper.” See Aleshire v. Aleshire, 642 S.W.2d 729, 731-732
(Tenn. App.1982).
Rehabilitative alimony was not introduced by the legislature until 1983. See 1983 Tenn.
Pub. Act, Ch. 414, § 1; T.C.A. § 36-820(d) (Supp. 1983). A third class of spousal support,
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however, was created by Chapter 243 of the 1993 Public Acts of Tennessee, which amended
T.C.A. § 36-5-101(d), effective April 30, 1993, by the following:
Rehabilitative support and maintenance is a separate class of spousal support as
distinguished from alimony in solido and periodic alimony.
In 2003, the legislature enacted a fourth type of alimony; transitional alimony.
Transitional alimony is awarded when the court finds that rehabilitation is not
necessary, but the economically disadvantaged spouse needs assistance to adjust
to the economic consequences of a divorce, legal separation or other proceeding
where spousal support may be awarded, such as a petition for an order of
protection. T.C.A. § 36-5-121(g)(1).
The legislature codified its public policy on spousal support.
“It is the public policy of this state to encourage and support marriage, and
to encourage family arrangements that provide for the rearing of healthy and
productive children who will become healthy and productive citizens of our
state.” T.C.A. § 36-5-121(c)(1).
The legislature recognized that:
Spouses have traditionally strengthened the family unit through private
arrangements whereby one (1) spouse focuses on nurturing the personal side of
the marriage, including care and nurturing of the children, while the other spouse
focuses primarily on building the economic strength of the family unit. This
arrangement often results in economic detriment to the spouse who subordinated
such spouse’s own personal career for the benefit of the marriage. T.C.A. § 36-5121(c)(1).
The General Assembly further found that:
Where one (1) spouse suffers economic detriment for the benefit of the marriage,
... the economically disadvantaged spouse’s standard of living after the divorce
should be reasonably comparable to the standard of living enjoyed during the
marriage or to the post-divorce standard of living expected to be available to the
other spouse, considering the relevant statutory factors and the equities between
the parties. T.C.A. § 36-5-121(c)(2).
The legislature then defined “to be rehabilitated” to mean:
[t]o achieve, with reasonable effort, an earning capacity that will permit the
economically disadvantaged spouse’s standard of living after the divorce to be
reasonably comparable to the standard of living enjoyed during the marriage, or to
the post-divorce standard of living expected to be available to the other spouse,
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considering the relevant statutory factors and the equities between the parties.
T.C.A. § 36-5-121(e)(1).
The legislature also provided that:
An award of alimony in futuro may be made, either in addition to a rehabilitative
award, where a spouse may be partially rehabilitated, or instead of a rehabilitative
award, where rehabilitation is not feasible. Transitional alimony is awarded when
the court finds that rehabilitation is not necessary, but the economically
disadvantaged spouse needs assistance to adjust to the economic consequences of
a divorce, legal separation, or other proceeding where spousal support may be
awarded, such as a petition for an order of protection. T.C.A. § 36-5-121(d)(4).
Alimony in solido may be awarded in lieu of or in addition to any other alimony
award, in order to provide support, including attorney fees, where appropriate.
T.C.A. § 36-5-121(d)(5).
In July 1, 2005, when the legislature made changes to the alimony statute,
“[a]mong the changes are the inclusion of a specific provision that allows for concurrent
awards of rehabilitative alimony and alimony in futuro in certain situations.” Anderson
v. Anderson, 2007 WL 957186 * 5 (Tenn. Ct. App. March 29, 2007).
B.
GUIDANCE IN AWARDING ALIMONY
1.
Standard of Review
The Tennessee Supreme Court restated the standard of review to be applied in alimony
cases, reiterating the deference to be provided to the trial court. Gonsewski v. Gonsewski, 350
S.W.3d 99, 105-106 (Tenn. 2011).
The trial court is granted broad discretion to determine whether spousal support is
required and if so, the nature, amount, and duration of such support. Broadbent v. Broadbent,
211 S.W. 3d 216, 220 (Tenn. 2006); Bratton, 136 S.W. 3d at 605. Consequently, an appellate
court is not inclined to alter a trial court’s spousal support decision unless an incorrect legal
standard was applied or the decision reached was clearly unreasonable. Broadbent, 211 S.W.3d
at 220; Bogan v. Bogan, 60 S.W. 3d 721, 733 (Tenn. 2001). The standard requires the appellate
court to consider: (1) whether the decision has a sufficient evidentiary foundation, (2) whether
the court correctly identified and properly applied the appropriate legal principles, and (3)
whether the decision is within the range of acceptable alternatives. See BIF v. Serv. Constr. Co.
No. 87-136-11, 1988 WL 72409 at * 2(Tenn. Ct. App. July 13, 1988). An appellate court will
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give great weight to decisions based on the trial court’s assessment of the credibility of the
witnesses, and will not reverse such an assessment absent clear and convincing evidence to the
contrary. Broadbent, 211 S.W. 3d at 220; Smith v. Smith, 93 S.W. 3d 871, 875 (Tenn. Ct. App.
2002). As such, alimony awards are reviewed under an abuse of discretion standard. Broadbent,
211 S.W. 3d at 220.
“An appellate court in reviewing an award of spousal support is to determine whether the
trial court applied the correct legal standard and reached a decision that is not clearly
unreasonable.” Broadbent v. Broadbent, 211 S.W.3d 216, 220 (Tenn. 2006). An abuse of
discretion occurs when the trial court causes an injustice by :
(1)
(2)
(3)
(4)
applying an incorrect legal standard,
reaching an illogical result,
resolving the case on a clearly erroneous assessment of the
evidence, or
relying on reasoning that causes an injustice.
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011); Henderson v. SAIA, Inc.,
318 S.W.3d 328, 335 (Tenn. 2010).
This standard does not permit an appellate court to substitute its judgment for that of the
trial court, but "'reflects an awareness that the decision being reviewed involved a choice among
several acceptable alternatives,' and thus 'envisions a less rigorous review of the lower court's
decision and a decreased likelihood that the decision will be reversed on appeal.'" Henderson,
318 S.W.3d at 335 (quoting Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).
When reviewing a discretionary decision by the trial court, such as an alimony determination,
the appellate court should presume that the decision is correct and should review the evidence
in the light most favorable to the decision. Wright, 337 S.W.3d at 176; Henderson, 318 S.W.3d
at 335. Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011)(emphasis added).
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2.
Determining the nature, amount, length and manner.
Tenn. Code. Ann. § 36-5-121 (i)(2008) provides:
In determining whether the granting of an order for payment of support
and maintenance to a party is appropriate, and in determining the nature, amount,
length of term, and manner of payment, the court shall consider all relevant
factors, including:
(1) The relative earning capacity, obligations, needs, and financial
resources of each party, including income from pension, profit sharing or
retirement plans and other sources;
(2) The relative education and training of each party, the ability and
opportunity of each party to secure such education and training, and the
necessity of a party to secure further education and training to improve
such party’s earning capacity to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party; including, but not limited to,
physical disability or incapacity due to a chronic debilitating disease;
(6) The extent to which it would be undesirable for a party to seek
employment outside the home because such party will be custodian of a
minor child of the marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property as defined in §
36-4-121;
[Tait v. Tait, 207 S.W. 3d 270, 2006 Tenn. App. LEXIS 327, May 18,
2006, app. denied (Tenn. Sept. 25, 2006)(The Court did not find Wife in
need of alimony, after considering the amount and the liquidity of the
marital property she received and the additional retirement that would be
forthcoming.)]
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions,
and tangible and intangible contributions by a party to the education,
training or increased earning power of the other party;
(11) The relative fault of the parties in cases where the court, in its
discretion, deems it appropriate to do so; and,
(12) Such other factors, including the tax consequences to each party, as
are necessary to consider the equities between the parties.
T.C.A. § 36-5-121(i) (2008).
When deciding whether to award alimony and determining the proper form and amount
of alimony, courts must consider the “relevant factors” set forth in section 121 (i)(1-12) but the
“the two that are considered the most important are the disadvantaged spouse's need and the
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obligor spouse's ability to pay.” Gonsewski v. Gonsewski, 350 S.W.3d 99, 110 (Tenn.
2011)(citing Riggs, 250 S.W.3d at 457; See also Bratton, 136 S.W.3d at 605; Robertson, 76
S.W.3d at 342; Burlew, 40 S.W.3d at 470). When considering these two factors, the primary
consideration is the disadvantaged spouse’s need. Riggs v. Riggs, 250 S.W. 3d 453, 457 (Tenn.
Ct. App. 2007)(citing Aaron v. Aaron, 909 S.W. 2d 404, 410 (Tenn. 1995). The amount of
alimony should be determined so “that the party obtaining the divorce [is not] left in a worse
financial situation than he or she had before the opposite party’s misconduct brought about the
divorce.” Broadbent, 211 S.W. 3d at 222 (citing Aaron v. Aaron, 909 S.W. 2d 408, 410-11).
Fault is an essential consideration in determining whether to award alimony. TCA 36-5121 (i)(11), Hoscheit v. Hoscheit, 1998 WL 440727, *3(Tenn. Ct. App. Aug. 5, 1998)(Citing
Gilliam v. Gilliam, 776 S.W.2d 81 (Tenn. Ct. App. 1988)). However, fault is not the only
relevant factor warranting consideration. Particularly, a trial court should carefully consider the
two most important factors, the disadvantaged spouse’s need and the obligor spouse’s ability to
pay. These two factors cannot be overlooked. Further, fault must not be applied punitively
against a guilty party. Tait v. Tait, 207 S.W.3d 270, 278 (Tenn. Ct. App. 2006). Nicholson v.
Nicholson, No. M2010-00042-COA-R3-CV, *12-13 (Tenn. Ct. App., Oct. 15, 2010). The court
of appeals vacated the trial court’s denial of alimony as it appeared the trial court was referring
to marital fault of Wife to deny alimony. Id. *12.
C.
REHABILITATIVE ALIMONY
1.
STATUTORY LANGUAGE
T.C.A. § 36-5-121
(c)(1) Spouses have traditionally strengthened the family unit through
private arrangements whereby one (1) spouse focuses on nurturing the
personal side of the marriage, including the care and nurturing of the
children, while the other spouse focuses primarily on building the
economic strength of the family unit. This arrangement often results in
economic detriment to the spouse who subordinated such spouse’s own
personal career for the benefit of the marriage. It is the public policy of
this state to encourage and support marriage, and to encourage family
arrangements that provide for the rearing of healthy and productive
children who will become healthy and productive citizens of our state.
(2) The general assembly finds that the contributions to the marriage as
homemaker or parent are of equal dignity and importance as economic
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contributions to the marriage. Further, where one (1) spouse suffers
economic detriment for the benefit of the marriage, the general assembly
finds that the economically disadvantaged spouse’s standard of living after
the divorce should be reasonably comparable to the standard of living
enjoyed during the marriage or to the post-divorce standard of living
expected to be available to the other spouse, considering the relevant
statutory factors and the equities between the parties.
(d)(2) It is the intent of the general assembly that a spouse who is
economically disadvantaged relative to the other spouse, be rehabilitated,
whenever possible, by the granting of an order for payment of
rehabilitative alimony. To be rehabilitated means to achieve, with
reasonable effort, an earning capacity that will permit the economically
disadvantage spouse’s standard of living after the divorce to be reasonably
comparable to the standard of living enjoyed during the marriage, or to the
post-divorce standard of living expected to be available to the other
spouse, considering the relevant statutory factors and the equities between
the parties.
(3) Where there is relative economic disadvantage and rehabilitation is not
feasible, in consideration of all relevant factors, including those set out in
this subsection (i), the court may grant an order for payment of support
and maintenance on a long-term basis or until the death or remarriage of
the recipient except as other provided in subdivision (f)(2)(B).
(4) An award of alimony in futuro may be made, either in addition to an
award of rehabilitative alimony, where a spouse may be partially
rehabilitated or instead an award of rehabilitative alimony, where
rehabilitation is not feasible.
(e)(1)Rehabilitative alimony is a separate class of spousal support, as
distinguished from alimony in solido, alimony in futuro, and transitional
alimony.
(2) An award of rehabilitative alimony shall remain in the court’s control
for the duration of such award, and may be increased, decreased,
terminated, extended, or otherwise modified, upon a showing of a
substantial and material change in circumstances. For rehabilitative
alimony to be extended beyond the term initially established by the court,
or to be increased in amount, or both, the recipient of the rehabilitative
alimony shall have the burden of proving that all reasonable efforts at
rehabilitation have been made and have been unsuccessful.
(3) Rehabilitative alimony shall terminate upon the death of the recipient.
Rehabilitative alimony shall also terminate upon the death of the payor,
unless otherwise specifically stated.
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Pursuant to the statute that went into effect on June 11, 2003 [and later arranged and
codified in T.C.A. § 36-5-121 effective July 1, 2005], the Court may award alimony in futuro
either in addition to a rehabilitation award, where a spouse may be partially rehabilitated as
defined above, or instead of a rehabilitation award, where rehabilitation is not feasible.
2.
Description of Rehabilitative Alimony
T.C.A. § 36-5-121(d)(2) reflects a statutory preference favoring rehabilitative spousal
support and transitional spousal support over long-term periodic spousal support. Gonsewski,
350 S.W.3d at 109. To be rehabilitated “means that, with reasonable efforts, the disadvantaged
spouse will be able to achieve “an earning capacity that will permit the economically
disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the
standard of living enjoyed during the marriage, or to the post-divorce standard of living expected
to be available to the other spouse.” TCA 36-5-121 (d)(2), (e)(1) (2005); accord Wiser v. Wiser,
No. M2009-00620-COA-R3-CV, 2010 WL 2553652, at *11-12(Tenn. Ct. App. June 25, 2010),
and Andrews v. Andrews, No. W2009-00161-COA-R3-CV, at 24-25, (Tenn. Ct. App. Aug. 31,
2010); see also Gonsewski, 350 S.W.3d at 108. “Rehabilitative alimony serves the purpose of
assisting the disadvantaged spouse in obtaining additional education, job skills, or training, as a
way of becoming more self-sufficient following the divorce.” Gonsewski, 350 S.W.3d at 109
(citing Robertson, 76 S.W.3d at 340-41; Isbell v. Isbell, 816 S.W.2d 735, 738-39 (Tenn. 1991)).
If the court finds that the recipient spouse can only be partially rehabilitated, it can award
both rehabilitative alimony and alimony in futuro. Anderson v. Anderson, No. M2005-02029COA-R3-CV, 2007 WL 957186 (Tenn. Ct. App. Mar. 29, 2007). The Court awarded both
rehabilitative alimony and alimony in futuro, as Wife could only be partially rehabilitated and
the parties had a disparity in their incomes. The court found that even with the spousal support
obligation, Husband was left with a monthly surplus and Wife with a monthly deficit. Brewer v.
Brewer, No. W2008-02041-COA-R3-CV (Tenn. Ct. App. September 3, 2009).
If a spouse can be fully rehabilitated, an award of alimony in futuro is not appropriate. In
Riggs v. Riggs, 250 S.W. 3d 453 (Tenn. Ct. App. 2007) perm. app. denied, January 23, 2008,
husband made approximately $70,000.00 per year and wife was unemployed but had a real estate
license at the time of divorce. The Court of Appeals reversed the trial court’s award of
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$1,200.00 per month in alimony in futuro because wife would, eventually, have the ability to
support herself . Id. at 459. The “award of alimony in futuro” said the court, “robs her of any
motivation to seek self-sufficiency.” Id. The court thus reversed the award of alimony in futuro,
and remanded “for determination of reasonably necessary rehabilitative alimony and/or
transitional alimony.” Id. at 460.
D.
ALIMONY IN FUTURO
1.
STATUTORY LANGUAGE
T.C.A. § 36-5-121
(f)(1) Alimony in futuro, also known as periodic alimony, is a payment of
support and maintenance on a long term basis or until death or remarriage of the
recipient. Such alimony may be awarded when the court finds that there is
relative economic disadvantage and that rehabilitation is not feasible, meaning
that the disadvantaged spouse is unable to achieve, with reasonable effort, an
earning capacity that will permit the spouse’s standard of living after the divorce
to be reasonably comparable to the standard of living enjoyed during the
marriage, or to the post-divorce standard expected to be available to the other
spouse, considering the relevant statutory factors and the equities between the
parties.
(2)(A) An award of alimony in futuro shall remain in the court’s control for the
duration of such award, and may be increased, decreased, terminated, extended or
otherwise modified, upon a showing of substantial and material change of
circumstances.
(B) In all cases where a person is receiving alimony in futuro and the alimony
recipient lives with a third person, a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient
and the alimony recipient does not need the amount of support previously
awarded, and the court should suspend all or part of the alimony
obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and
the alimony recipient does not need the amount of alimony previously
awarded and the court should suspend all or part of the alimony obligation
of the former spouse.
(3) An award for alimony in futuro shall terminate automatically and
unconditionally upon the death or remarriage of the recipient. The recipient shall
notify the obligor immediately upon the recipient’s marriage. Failure of the
recipient to timely give notice of the remarriage shall allow the obligor to recover
all amounts paid as alimony in futuro to the recipient after the recipient’s
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marriage. Alimony in futuro shall also terminate upon the death of the payor,
unless otherwise specifically stated. T.C.A. § 36-5-121.
2.
DESCRIPTION OF ALIMONY IN FUTURO
Alimony in futuro is intended to provide long-term support to an economically
disadvantaged spouse who cannot be rehabilitated. Gonsewski,350 S.W.3d at 107; see also
Burlew v. Burlew, 40 S.W. 3d 465, 471 (Tenn. 2001). In Oakes v. Oakes, 235 S.W. 3d 152, 161
(Tenn. Ct. App. 2007), the Court of Appeals changed the trial court’s award of rehabilitative
alimony to an award of alimony in futuro because there was no evidence that wife could be
rehabilitated.
In Gonsewski v. Gonsewski, 350 S.W.3d 99 (Tenn. 2011), the Supreme Court reversed
the Court of Appeals and affirmed the trial court denial of alimony in futuro to wife. The trial
court denied Wife alimony in futuro explaining that she had a stable job, earned a good income,
and that her share of the marital estate was sufficient to find another residence. Id. at 112. On
appeal, the Court of Appeals awarded her alimony in futuro in the amount of $1,250 per month.
Id. The parties were both forty-three, had been married twenty-one years, both had college
degrees and had worked throughout the marriage. Id. at 111. Husband earned $99,000 per year
plus bonuses, which were expected to decrease and Wife worked for the State and earned
$72,000 per year plus a relatively small longevity bonus. Id. The Supreme Court noted that
there was little evidence as to the parties’ standard of living during the marriage and Husband’s
expected standard of living after the marriage. Id. The Supreme Court affirmed the trial court’s
denial of alimony in futuro finding that the record demonstrated that Wife could support herself
and that both parties’ standard of living after the divorce is likely to decline as two persons living
separately incur more expenses than two persons living together. Id. at 112.
In Hayes v. Hayes, No. M2008-02007-COA-R3-CV (Tenn. Ct. App. June 29, 2009), the
court affirmed the trial court’s award of alimony in futuro, as opposed to transitional alimony,
because of Wife’s need, Husband’s greater earning capacity, Wife’s increased standard of living
while married, fault of Husband for the demise of the marriage, Husband’s lack of credibility,
and Husband’s separate property. The parties were married only nine years, Husband was 63
years old and Wife was 64 years old at the time of the hearing, and the court found Husband able
to work and Wife was disabled.
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It is not, however, a guarantee that the recipient spouse will forever be able to enjoy a
lifestyle equal to that of the obligor spouse. Gonsewski, 350 S.W.3d at 108. It is usually paid in
regular intervals for an indeterminate period of time. Because it is modifiable by the court and
will terminate on the death or remarriage of the recipient, the total amount that will be paid
cannot be known. Because of this susceptibility to contingencies, alimony in futuro is said to
lack “sum-certainty.” Burlew v. Burlew, 40 S.W. 3d 465, 471 (Tenn. 2001).
"Alimony in futuro lacks a sum certainty due to contingencies affecting the total amount
of alimony to be paid.” Waddey v. Waddey, 6 S.W. 3d 230, 232 (Tenn. 1999). In Waddey the
parties agreed to alimony in futuro of $1,000.00 per month until death or remarriage of the wife,
or March 1, 1996, “whichever shall first occur." Id. at 231. It is therefore clear that the duration
of an award of alimony in futuro may be affected by contingencies agreed upon by the parties or
imposed by courts. See Id. at 232.
“The purpose of alimony in futuro is to continue the support that was incident to the
marriage relationship, and is appropriate when the spouse cannot be rehabilitated.” [Janet L.
Richards, Richards on Tennessee Family Law § 12-3(b)] (3rd Ed. 2008 Supp.)
3.
CLOSING IN MONEY
While alimony is not intended to provide a former spouse with relative financial
ease, the court may award alimony in such a way that spouses approach equity.
The award will not put the disadvantaged spouse in the same position in which
she was prior to the divorce, it will provide her with ‘closing in money,’ that is
she will be enabled to closely approach her former economic position. Aaron v.
Aaron, 909 S.W. 2d 408, 411 (Tenn.1995).
4.
NOMINAL ALIMONY
The use of nominal alimony allows the trial court to retain jurisdiction to modify alimony
if circumstances in the future should warrant it. In the case of Justice v. Justice, M1998-00916COA-R3-CV, 2001 Tenn. App. LEXIS 112 (Tenn. Ct. App. MS, February 23, 2001), the court
awarded Mrs. Justice $50.00 per month as alimony in futuro during Dr. Justice’s fellowship at
Vanderbilt. The court found that Mrs. Justice was financially disadvantaged in comparison to
Dr. Justice. Even though she was a pharmacist, her earning capacity would certainly never
approach the income that Dr. Justice can reasonably be expected to earn as a practicing
physician. See Id. at *4.
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Another example of nominal alimony is the case of Griffin v. Griffin, No. 02A01-9807CH-00177, 1999 Tenn. App. LEXIS 751 (Tenn. Ct. App. WS, October 30, 1999), where the
court awarded Mrs. Griffin $100.00 per month as alimony in futuro. While Mrs. Griffin had the
present ability to earn a living as a real estate agent, because her cancer was in remission, the
court awarded her alimony in futuro. The court found that, “Wife is entitled to at least a nominal
award of alimony in futuro which, in the event of a substantial and material change of
circumstances, such as the recurrence of Wife’s cancer, may be modified to reflect the changed
positions of the parties.” Id. at 756.
In the case of Eaves v. Eaves, 2007 WL 4224715 at *6 (Tenn. Ct. App. 2007), the court
granted Wife alimony in futuro in an amount of $10.00 per month. The trial court found that at
present, Husband did not have the ability to assist Wife due to his enormous debt burden and
monthly expenses, however, if the husband had the ability to help support Wife, a more
substantial amount would be awarded to her. Id. The court retained jurisdiction to examine the
amount of alimony, when the parties’ circumstances changed. Id.
5.
AUTOMATICALLY INCREASING ALIMONY
There has yet to be a Supreme Court decision on ‘escalating clauses for alimony’,
however here are two Court of Appeals cases where they are discussed. The author
cautions the practitioner, that if alimony is linked to child support, there may be tax
implications and the alimony may not be deductible from the payor’s income.*
It is within the power of the court to make an order providing for an automatic increase in
alimony at the occurrence of a specified event. Courts will sometimes order an automatic
increase in alimony to save the parties the expense of petitioning to modify when a change in
circumstances is imminent and forseeable. For instance, in Erwin v. Erwin, No. W1998-00801COA-R3-CV, 2000 WL 987339 (Tenn. Ct. App. June 26, 2000), the parties had one daughter
who was seventeen (17) years old. The court, finding that husband was at fault in the divorce,
awarded wife $500.00 per month alimony in futuro, and $1,000.00 per month in child support.
Id. at *2. The court also provided that husband’s alimony obligation would increase to
$1,000.000 per month when his child support obligation ended. Id. Husband appealed, arguing
that the automatic increase was improper because wife’s needs would not be greater just because
daughter graduated from high school. Id. Because husband’s ability to pay increased when he
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was relieved of the child support obligation and because the alimony award was not excessive,
the Court of Appeals affirmed. Id.
In Anderson v. Anderson, No. M2005-02029-COA-R3-CV, 2007 WL 957186 (Tenn. Ct.
App. Mar. 29, 2007), the court reaffirmed the concept of automatically increasing alimony,
noting the expansive statutory authority of the courts to set alimony based on the unique facts
and circumstances of each case. In Anderson, like in Erwin, the court ordered husband’s
alimony to increase automatically when his child support obligation ended. Id. The Anderson
court vacated the automatic increase however, largely because the children were eight (8) years
old at the time the final decree was entered. Id. at *8. The court reasoned that “the length of
time before the increase is scheduled to go into effect is so long that any predictive advantage is
likely to be overcome by the effects of other events, at this point quite unpredictable, such as
changes in the employment, income and health of either or both parties.” Id. at *9. The court
thus distinguished the Erwin case and clarified the rationale for this type of award.
*
The IRS will not consider payments as alimony for deduction purposes, if a
taxpayer reduces alimony within six (6) months before or after the child’s 18th or 21st
birthday or if the tax payer has more than one child, within one (1) year before or after a
different child of the payor attains a certain age between the ages 18 and 24, inclusive.
There is a rebuttable presumption that these payments are child support.
Note: The presumption can be overcome, if the reduction is complete, cessation of
alimony during the sixth post separation year or expiration of the 72 month period.
If the order requires a reduction in alimony upon a modification of child support,
such that for every dollar increased in child support, alimony is decreased, then the
alimony is still considered deductible and taxable, because it is not fixed to the age of a
child.
E.
TRANSITIONAL ALIMONY
1.
STATUTORY LANGUAGE
T.C.A. § 36-5-121
(g)(1)Transitional alimony means a sum of money payable by one (1) party to, or
on behalf of, the other party for a determinate period of time. Transitional
alimony is awarded when the court finds that rehabilitation is not necessary, but
the economically disadvantaged spouse needs assistance to adjust to the economic
consequences of a divorce, legal separation or other proceeding where spousal
support may be awarded, such as a petition for an order of protection.
(2) Transitional alimony shall be nonmodifiable unless:
Section I-13
(Revised 12/31/11)
(A) The parties otherwise agree in an agreement incorporated into the initial order
of divorce, legal separation or order of protection;
(B) The court otherwise orders in the initial order of divorce, legal separation or
order of protection; or
(C) The alimony recipient lives with a third person, in which case a rebuttable
presumption is raised that:
(i)The third person is contributing to the support of the alimony recipient
and the alimony recipient does not need the amount of support previously
awarded, and the court should suspend all or part of the alimony
obligation of the former spouse; or
(ii)The third person is receiving support from the alimony recipient and
the alimony recipient does not need the amount of alimony previously
awarded and the court should suspend all or part of the alimony obligation
of the former spouse.
(3) Transitional alimony shall terminate upon the death of the recipient.
Transitional alimony shall also terminate upon the death of the payor, unless
otherwise specifically stated in the decree.
(4) The court may provide, at the time of entry of the order to pay transitional
alimony, that the transitional alimony shall terminate upon the occurrence of other
conditions, including, but not limited to, the remarriage of the party receiving
transitional alimony. T.C.A. § 36-5-121.
2.
Description of Transitional Alimony
Transitional alimony “is paid for a definite duration when a court finds that rehabilitation
is not necessary but that the economically disadvantaged spouse needs assistance adjusting to the
economic consequences of divorce.” Gonsewski, 350 S.W.3d at 109; see also Owens v. Owens,
241 S.W. 3d 478, 493 n.14 (Tenn. Ct. App. 2007).
The purpose of transitional alimony is to aid the person in transition to the status of a
single person. Id.; Matthews v. Matthews, No. M2009-00413-COA-R3-CV, 2010 WL 1712961,
at *9 (Tenn. Ct. App. Apr. 28, 2010). “[T]ransitional alimony is designed to aid a spouse who
already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to
the economic consequences of establishing and maintaining a household without the benefit of
the other spouse’s income.” Gonsewski, 350 S.W.3d at 109. In Mathews, the court of appeals
found that “wife needs a substantial amount of transitional alimony so that she can pay off her
debts and stabilize her finances”. Mathews, 2010 WL 1712961 at *11.
In Hensley v. Hensley, 2006 Tenn. Ct. App. LEXIS 564 (Tenn. Ct. App. Aug. 29, 2006),
the court affirmed the trial court’s award of transitional alimony to wife because, although
Section I-14
(Revised 12/31/11)
rehabilitation was not necessary, the wife needed spousal support in order to adjust to the
economic consequences of the divorce. Id. at *7. In affirming the award, the court noted that
wife must now “make significant adjustments to her future plans to adapt to the effects of the
divorce.” Id.
The court found that Wife will have a continued need of support beyond the transitional
alimony awarded by the trial court, and awarded Wife alimony in futuro upon the termination of
transitional alimony. Watson v. Watson, No. M2007-02735-COA-R3-CV, 2009 Tenn. App.
LEXIS 355 (Tenn. Ct. App. May 27, 2009).
“Long term alimony in the form of alimony in futuro is to be awarded when rehabilitation
is not feasible as compared to an award of transitional alimony where rehabilitation is not
necessary.” Green v. Green, No. M2008-0279-COA-R3-CV, 2010 WL 891897, at *6 (Tenn. Ct.
App. Mar 12, 2010). Ms. Green was awarded transitional alimony because she worked
throughout the marriage and there was no evidence presented that Wife needed or desired further
training or education. Because Husband was obligated to pay a substantial portion of the marital
debts, and the parties lived beyond their means, the amount of transitional alimony and length of
transitional alimony was appropriate.
In Gonsewski v. Gonsewski, the trial court’s denial of transitional alimony was affirmed
as the Supreme Court founds that “Wife has not demonstrated that she is in need of additional
financial assistance in order to adjust to the economic consequences of divorce.” 350 S.W.3d at
115. In so holding, the Court noted that Wife had a stable work history, she was young, in good
health and educated, she had received $1,200 pendente lite alimony for sixteen months, and that
Husband was ordered to pay one-half of the mortgage, insurance and taxes for ninety days
following the divorce. Id. The Court also noted that Wife had failed to specifically ask for
transitional alimony.
Comment and practical note:
Transitional alimony is designed to help the party adjust to the economic consequences of
the divorce.
Transitional alimony allows the payor of alimony to deduct the alimony payments from
taxes. The payor knows that the alimony payments will last for a certain period of time, unless
the court makes the award modifiable at the time of the divorce.
Section I-15
(Revised 12/31/11)
Two possible scenarios when transitional alimony is appropriate are the following:
(1)
Where the marriage is of short duration and neither party suffered
a detriment to their earning capacity during the marriage and neither party
needs to be rehabilitated, however, one spouse has taken off time from
their career to care for a child, the court may award transitional alimony to
“bridge the gap” from the time of the divorce to a certain time in the
future.
(2)
Where the marriage is of short duration and one spouse has given
up certain assets or benefits in reliance on the continuation of the
marriage, the court may award transitional alimony to assist that spouse to
adjust to the economic consequences of a divorce.
Where the parties were married for 3 years, the court awarded both alimony in solido and
transitional alimony to compensate wife for the value of the assets she brought into the marriage
(which Husband lost) and the balance of the loan made to her Husband, and to adjust to the
economic consequences of a divorce. Bird v. Bird, No. E2008-00269-COA-R3-CV (Tenn. Ct.
App. August 27, 2009).
Practical Note: In Gonsewski v. Gonsewski, the Supreme Court noted that it “may be
prudent for parties, to set forth in their pleadings exactly the types of alimony sought. In
Gonsewski, Wife was appealing the trial court’s denial of transitional alimony. The Supreme
Court noted that Wife had not prayed for transitional alimony. Gonsewski, 350 S.W.3d at FN11.
F.
ALIMONY IN SOLIDO
1.
STATUTORY LANGUAGE
T.C.A. § 36-5-121
(h)(1) Alimony in solido, also known as lump sum alimony, is a form of long
term support, the total amount of which is calculable on the date the decree is
entered, but which is not designated as transitional alimony. Alimony in solido
may be paid in installments; provided, that the payments are ordered over a
definite period of time and the sum of the alimony to be paid is ascertainable
when awarded. The purpose of this form of alimony is to provide financial
support to a spouse. In addition, alimony in solido may include attorney fees,
where appropriate.
(2) A final award of alimony in solido is not modifiable, except by agreement of
the parties only.
Section I-16
(Revised 12/31/11)
(3) Alimony in solido is not terminable upon the death or remarriage of the
recipient or the payor. T.C.A. § 36-5-121 (2008).
2.
DESCRIPTION OF ALIMONY IN SOLIDO
Alimony in solido is also a form of long term support, that is set on the date of divorce
and is either paid in a lump sum payment of cash or property, or paid in installments for a
definite term.
Gonsewski, 350 S.W.3d at 108 (citing Tenn. Code Ann. 36-5-121(h)(1);
Broadbent v. Broadbent, 211 S.W.3d at 222). “Generally speaking, an award of alimony in
solido is preferable to an award of alimony in futuro.” Houghland v. Houghland, 844 S.W. 2d
619, 621 (Tenn. Ct. App. 1992).
While alimony in solido may be used in some cases to adjust the division of the parties'
marital property, the court in Clayton awarded alimony in solido based upon the demonstrated
need of the wife and to supplement her retirement income. Clayton v. Clayton, No. E2000014130COA-R3-CV, 2001 Tenn. App. LEXIS 399, appeal denied 10/29/01. See Burlew v.
Burlew, 40 S.W.3d 465, 471 (Tenn. 2001).
Alimony in solido can be awarded to compensate a spouse for the decrease in the value of
her separate property during the marriage, when the other spouse’s actions of investing the
separate property in the stock market, reduced the separate property to virtually nothing.
Broadbent v. Broadbent, 211 S.W. 3d 216 (Tenn. 2006).
Especially in a marriage of short duration, trial courts attempt to place the parties as
nearly as possible in the financial positions they occupied before the marriage took place. See
Batson v. Batson, 769 S.W. 2d 849, 859 (Tenn. Ct. App. 1988). For example, the court in
Broadbent said, “[g]iven the extremely short duration of the marriage in this case, the primary
goal should be to place the parties in approximately the same position they were in before the
marriage.” Broadbent, 211 S.W. 3d at 222. The trial court correctly attempted to restore the
parties to their pre-marriage financial condition. It is clear that the alimony awarded by the trial
court was to compensate Ms. Langhi for the decrease in the value of her separate property during
the marriage. Id.
Section I-17
(Revised 12/31/11)
Finally, the trial court may consider the relative fault of a spouse and "such other factors
. . . as are necessary to consider the equities between the parties" in making a spousal support
award. T.C.A. § 36-5-101(d)(1)(K), (L) (2008). The Broadbent Court found that the:
weight of the evidence shows that Mr. Broadbent is more responsible for the end
of the parties' marriage than Ms. Langhi. The trial court awarded the divorce to
Ms. Langhi and found that Mr. Broadbent's ‘obsession with the stock market
ruined [Ms. Langhi's] savings and left her with virtually nothing.’ The trial court
clearly considered Mr. Broadbent's relative fault when calculating the alimony
award. We conclude that it was proper for the trial court to consider Mr.
Broadbent's participation in the loss of Ms. Langhi's separate assets in awarding
alimony. Moreover, the trial court's allocation of responsibility for this loss,
although expressed in percentages of "comparative fault" rather than relative
fault, was not error. Accordingly, we hold that the trial court did not abuse its
discretion in awarding $ 51,500 in alimony in solido to Ms. Langhi.
Id. at 222-23.
In another case where the parties were married for three (3) years, the court awarded both
alimony in solido and transitional alimony to compensate wife for the value of the assets she
brought into the marriage (which Husband lost) and the balance of the loan made to her
Husband, and to adjust to the economic consequences of a divorce. Bird v. Bird, No. E200800269-COA-R3-CV (Tenn. Ct. App. August 27, 2009).
3.
ALIMONY IN SOLIDO AWARDED OUT OF THE PRESENT ESTATE
The baseline rule is that alimony in solido is generally paid out of the present estate of the
obligor spouse and may not be based on expected future earnings. Aleshire v. Aleshire, 642
S.W. 2d 729, 733 (Tenn. Ct. App. 1981). For instance, in the case of Denton v. Denton, 902
S.W. 2d 930 (Tenn. Ct. App. 1995), app. denied, the Court awarded Wife twenty-five percent
(25%) of Husband’s fifty percent (50%) interest in the residence, when the home sold, as
alimony in solido. Wife was allowed to live in the house until the child reached the age of
eighteen (18) years. The house would then be sold, with seventy-five percent (75%) of the
proceeds payable to Wife and twenty-five percent (25%) of the proceeds payable to Husband.
Courts in Tennessee have classified trusts and business interests as an estate out of which
an award of alimony in solido is proper. In Houghland v. Houghland, 844 S.W. 2d 619 (Tenn.
Ct. App. 1992), the court said that husband’s yearly net income of $18,000.00 from a trust
established by his father was an estate for purposes of awarding alimony in solido. Id.
Section I-18
(Revised 12/31/11)
Similarly, in Hall v. Hall, 772 S.W. 2d 432 (Tenn. App. 1989), the court affirmed an award of
alimony in solido from husband’s profit sharing interest in a business, because his “anticipated
share of profits in future years constituted an anticipated estate out of which alimony in solido
and/or alimony in futuro might properly be ordered.” Id. at 438.
4.
EXAMPLES WHEN ALIMONY IN SOLIDO IS AWARDED OUT OF FUTURE EARNINGS
An example of a situation where alimony in solido can be awarded from future earnings,
is a situation where a spouse intentionally disposes of his or her assets or the marital estate to
deprive the other spouse of alimony in solido. Such was the case in Robinson v. Robinson, No.
W2003-01836-COA-R3-CV, 2005 Tenn. App. LEXIS 27 (Tenn. Ct. App. May 9, 2005). There,
the court clarified the Aleshire baseline rule but added that “in circumstances such as this, where
a spouse dissipated marital assets by failing to preserve them, the award is calculated based on
what the marital estate would have been absent the dissipation” and the court can therefore order
the alimony in solido to be paid out of future earnings. Id. at *54-55. Another example is the
situation where it is shown that a spouse entered into the marriage solely to have his or her
spouse work and provide him or her with an education. Aleshire, 642 S.W. 2d at 733.
The court in a later case awarded wife alimony in solido out of future earnings when wife
went into debt to rehabilitate herself. See Day v. Day, 931 S.W. 2d 936 (Tenn. App. 1996). The
court reasoned that Mrs. Day should be reimbursed for the debts she incurred to educate herself
in order to provide for her own support; had she not have done so before the hearing, Mrs. Day
would have been entitled to rehabilitative alimony. Id. at 939.
5.
ATTORNEY’S FEES ARE AWARDED AS ALIMONY IN SOLIDO
In a divorce case, attorney fee awards are treated as alimony in solido. Owens v. Owens,
241 S.W. 3d 478, 496 (Tenn. Ct. App. 2007); Kinard v. Kinard, 986 S.W. 2d 220, 235 (Tenn. Ct.
App. 1998); Herrera v. Herrera, 944 S.W. 2d 379, 390 (Tenn. Ct. App. 1996). “Such awards are
appropriate when the spouse seeking them lacks sufficient funds to pay his or her own legal
expenses or the spouse would be required to deplete his or her resources in order to pay his or
her legal expenses.” Gonsewski, 350 S.W.3d at 113 (citing Houghland v. Houghland, 844
S.W.2d 619, 623 (Tenn. Ct. App. 1992) and Harwell v. Harwell, 612 S.W.2d 182, 185 (Tenn. Ct.
App. 1980). “Attorney fees are usually due and payable upon the completion of a case, so it is
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(Revised 12/31/11)
appropriate to award such fees where the obligee spouse does not have a sufficient amount of
liquid assets to pay the attorney.” Matthews v. Matthews, No. M2009-00413-COA-R3-CV,
2010 WL 1712961, at * 12, (Tenn. Ct. App. Apr. 28, 2010).
The parties may be entitled to an additional award for their legal expenses if they
demonstrate that they lack sufficient funds to pay their legal expenses or that they would be
required to deplete other needed assets to do so. Brown v. Brown, 913 S.W. 2d 163, 170 (Tenn.
Ct. App. 1994).
a.
Statutory Authorities.
(b)The court may, in its discretion, at any time pending the final hearing, upon motion
and after notice and hearing, make any order that may be proper to compel a spouse to pay any
sums necessary for the support and maintenance of the other spouse, to enable such spouse to
prosecute or defend the suit of the parties and make other orders as it deems appropriate.
T.C.A. § 36-5-121 (2008).
The plaintiff spouse may recover from the defendant spouse, and the spouse or other
person to whom the custody of the child, or children, is awarded may recover from the other
spouse reasonable attorney fees incurred in enforcing any decree for alimony and/or child
support. T.C.A. § 36-5-103(C).
b.
Analysis in determining whether to award attorney fees.
In determining whether to award attorney’s fees, the trial court should consider the
relevant factors in T.C.A. § 36-5-121 (i)(1-12). Houghland v. Houghland, 844 S.W. 2d 619, 623
(Tenn. Ct. App. 1992). “ Where the wife demonstrates that she is financially unable to afford
counsel, and where the husband has the ability to pay, the court may properly order the husband
to pay the wife’s attorney’s fees.” Harwell v. Harwell, 612 S.W. 2d 182, 185 (Tenn. Ct. App.
1988). Trial courts are inclined to award attorney fees as alimony in solido if the economically
disadvantaged spouse would be forced to deplete assets to pay the fees. Owens v. Owens, 241
S.W. 3d 478, 496 (Tenn. Ct. App. 2007). Accordingly, “a party need not be required to pay legal
expenses out of funds and assets awarded by the trial court and intended to provide future
support and income.” Id. The Owens court relied on this rationale to award wife attorney’s fees
even though she was already receiving rehabilitative alimony.
Section I-20
(Revised 12/31/11)
A party’s decision to engage in litigation tactics calculated to produce delay and increase
costs is a factor to be considered in connection with an award of attorney fees. In Gonsewski,
the Supreme Court affirmed the trial court’s denial of attorney fees, in part, based upon the
parties’ unnecessary contentiousness in the divorce case which included harassing behavior,
litigating over a ski trip, emails from a home computer, husband’s access to his hunting
equipment, whether certain pleadings should be stricken, the disqualification of Wife’s attorney
and a dispute over who should pay a $17.29 lawn service bill. Gonsewski, 350 S.W.3d at 11314. See also Fox v. Fox, No. M2009-02341-COA-R3-CV, 2011 Tenn. App. LEXIS 145, *17
(Tenn. Ct. App. March 24, 2011)(affirming denial of attorney’s fees to Wife due to Wife’s delay
of litigation); May v. May, No. E2010-01026-COA-R3-CV, 2011 Tenn. App. LEXIS 635, *
(Tenn. Ct. App. November 29, 2011)(affirming trial court’s award of attorney’s fees finding
Wife has inability to pay, would be required to deplete assets and that Wife was required to incur
such fees based upon Husband’s “harassing and contemptuous conduct.”).
“These awards are within the sound discretion of the court, and unless the evidence
preponderates against the award, it will not be disturbed on appeal.” Broadbent, 211 S.W. 3d at
220; Lyon v. Lyon, 765 S.W. 2d 759, 762-63 (Tenn. Ct. App. 1988).
c.
The correct legal standard in setting an amount of attorney fees.
“The Tennessee Supreme Court has directed that trial courts are to consider the
guidelines as delineated in Conners v. Conners, 594 S.W. 2d 672 (Tenn. 1980) and the factors
listed in S.Ct. Rule 8, RPC 1.5. Keith v. Howerton, 165 S.W. 3d 248 (Tenn. Ct. App. 2004).
The reasonableness of an attorney’s fees will depend upon the particular circumstances of the
individual case, as considered in light of the relevant guidelines. Stockman v. Stockman, No.
M2009-00992-COA-R3-CV, at *13. (Tenn. Ct. App. Feb. 22, 2010).
G.
PENDENTE LITE SUPPORT
1.
STATUTORY LANGUAGE
The court may, in its discretion, at any time pending the final hearing, upon
motion and after notice and hearing, make any order that may be proper to compel
a spouse to pay any sums necessary for the support and maintenance of the other
spouse, to enable such spouse to prosecute or defend the suit of the parties and to
make other orders as it deems appropriate. Further, the court may award such sum
as may be necessary to enable a spouse to pay the expenses for job training and
Section I-21
(Revised 12/31/11)
education. In making any order under this subsection (b), the court shall consider
the financial needs of each spouse and the children, and the financial ability of
each spouse to meet those needs and to prosecute or defend the suit. T.C.A. § 365-121(b).
2.
EXAMPLES OF PENDENTE LITE SUPPORT AWARDS
Pendente Lite Support is the payment of expenses for the support and maintenance of a
spouse pending the final decree of divorce. Expenses may include but are not limited to “funds
being used for car payments, insurance premiums, and other expenses related to the support of
wife.” Demontbreun v. Demontbreun, No. 01A01-9703-GS-00129, 1997 WL764530 (Tenn. Ct.
App., December 12, 1997).
In the case of McGregor v. McGregor, No. E1999-00877-COA-R3-CV, 2000 WL
1424928 (Tenn. Ct. App. Sept. 26, 2000), appeal denied March 19, 2001, the court found that
even though wife took monies out of the bank account before the divorce was filed, those monies
went to pay on marital debt, for a child’s field trip, establish a new residence for wife and child
and thus, the monies were considered alimony pendente lite support and not marital property to
divide. Id. at *2.
Temporary alimony in a divorce action “is an incident of such suit … and does not exist
apart from the action.” 27 B C.J.S., Divorce 315 (1986). Thus, “alimony pendente lite support
cannot be granted after the principal action is dismissed.” Vermillion v. Vermillion, No. 03A019206CV211, 1992 WL 311001(Tenn. App. ES October 28, 1992). The court vacated the trial
court’s award of alimony pendente lite since the trial court had already dismissed the complaint
for divorce. See Id. at *1.
If a case is on appeal, however, the courts have awarded temporary support during the
pendency of an appeal. In the case of Wade v. Wade, 897 S.W. 2d 702, (1994), appeal denied,
the court pursuant to Tenn. R. Civ. Pro. 62.03 “has discretion to grant whatever additional or
modified relief is deemed appropriate during the pendency of an appeal.” Mrs. Wade was
granted temporary alimony pendente lite necessary for her support because the appeal effectively
stayed the division of the property and because Mr. Wade earned quite a bit more than Wife who
was technically below the poverty line. See Id. at 719.
In Brock v. Brock, 941 S.W. 2d 896 (Tenn. Ct. App. 1996), the court found that
payments of $176,000.00 voluntarily made by husband to wife during the pendency of the
Section I-22
(Revised 12/31/11)
divorce to defray wife’s living expenses were temporary pendente lite support payments and
should not be considered as part of the division of property. Likewise, in the case of Scarbrough
v. Scarbrough, No. W1998-00167-COA-R3-CV, 1999WL 1567097 (Tenn. Ct. App. December
14, 1999), the court ruled that “pendente lite awards are not deducted from permanent alimony
awards.” Id. at 5.
“A party cannot be “in arrears” of payment of temporary alimony (also known as alimony
pendente lite) when no order awarding temporary alimony has been entered. Jones v. Jones,
2006 WL 568260 at *6 (Tenn. Ct. App. Mar. 8, 2006).
In Jones, the court found that the
arrearage amount was appropriately awarded after considering all of the factors, however, the
award is classified as a lump sum spousal award or alimony in solido. Id.
H.
DIVORCE DECREE DICTATES
“If a divorce decree does not award alimony, alimony may not be awarded later, unless a
later right to alimony is afforded by statute.” Sellers v. Sellers, 221 S.W. 3d 43, 47, (Tenn. Ct.
App. 2006), perm. app. denied. January 29, 2007 (citing Davenport v. Davenport, 178 Tenn. 517,
160 S.W. 2d 406 (Tenn. 1942)). The decree failed to award Wife alimony, yet awarded her a
portion of Husband’s retirement benefits from the United States military. After the divorce, Mr.
Sellers’s military payments reduced, as he became disabled and his disability payments
increased. Ms. Sellers’ retirement payments went from $900.00 to $90.00 per month.
“Husband’s disability payments [from the Department of Defense] were not available to Wife
because federal law prohibits the division of disability benefits as marital property in a divorce
proceeding.” Sellers, 221 S.W. 3d at 45 (citing Mansell v. Mansell, 490 U.S. 581, 109 U.S.Ct.
2023, 104 L.Ed. 675 (1989)).
Section I-23
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